August 30, 2013

Q&A: Ropes & Gray's Douglas Hallward-Driemeier

It's been a busy
summer for Douglas Hallward-Driemeier, the managing partner of Ropes &
Gray's Washington office. On the last day of the Supreme Court term, the
high court said it would review the limits of power of bankruptcy judges; the
firm is involved in the case. Then in early July, Hallward-Driemeier, the
leader of Ropes & Gray's appellate and Supreme Court practice, took over as
office managing partner.

From 2004 to
2009, Hallward-Driemeier was an assistant to the Solicitor General at the U.S.
Department of Justice. At Main Justice, Hallward-Driemeier argued 13 cases
before the high court and filed more than 150 briefs. He returned
to Ropes & Gray in 2010 to lead its appellate and Supreme Court practice.

Legal
Times: How does the D.C. office of Ropes & Gray fit with the rest of the
firm?

Hallward-Driemeier
: The first thing that is critical to understand about the D.C. office is that
it is very well integrated with the rest of the firm. The firm policy overall
is to run as a single firm. There is a lot of wonderful collaboration across
offices. We are not simply on our own at all. That said there is a distinctive
flavor of the D.C. office. It is much more government-facing and we are able to
provide that additional range of services to clients.

Some of the
areas where we have particular depth in the D.C. office include life sciences.
Again, showing the collaboration across the practice groups, we have both a
number of people who focus on regulatory matters but we also have government
enforcement partners. We do IP litigation and administrative-type litigation.
Some of the IP work is very D.C.-focused. We have a number of very big matters
before the ITC right now. There is a new administrative body at the Patent and
Trademark Office called the Patent Trial and Appeals Board. In its short
lifespan, we have become the leading practice before that body. I think we have
something like 16 of the first 40 cases filed there. It's adding to the
repertoire of what we can do for the clients.

What is
the potential for growth in the Washington office?

I think our
headcount is about to go up. I think we're getting 11 new associates coming in
this fall which will push us up over 80 in terms of numbers. Look at the growth
that we've had over the last five years and the common theme is the
government-facing aspect of what they do. We've added two partners in government
enforcement, each of who came out of the Criminal Division at DOJ. We've added
an two antitrust partners; one of whom who had DOJ antitrust experience and the
other was at the FTC doing antitrust work. We've expanded the capacity for ITC
litigation at the ITC and the Patent Trademark Office. Life sciences expanded
beyond pharmaceuticals to food and consumer protection. The constant theme of
all of those ways in which we've been growing is the government facing. I see
that continuing as kind of an organizing principle. Looking specifically to
grow in those areas where the firm is so strong and where we can expand the
breadth of that representation to do even more. Healthcare is one area where we
would expect to see some additional growth in DC. Likewise, investment
management and SEC regulation and enforcement.

How does
the Supreme Court and appellate practice fit into the D.C. office?

The Supreme
Court and appellate practice that I head up, we work across the firm and the
country. I think we were involved in four of the last six cases that the court
decided in the last term. Then on the last day of the term, they granted cert
in the petition that we had filed in a bankruptcy case that presents some
really, very interesting questions of the separation of powers and
constitutional authority of bankruptcy judges. That is a matter of what I'm
working closely with one of our bankruptcy and restructuring partners in
Boston.

What is
the significance of the bankruptcy case you're working on?

The case presents
some critical questions about the circumstances in which Congress can assign
responsibility to non-Article III judges to enter final judgment in
cases that would be traditional state law causes of action. One aspect of that
issue was decided by the Supreme Court a couple of terms ago in a case called
Stern v. Marshall, which was famous in the press mostly because Anna Nicole
Smith was one of the litigants. One question that the decision there left open
was "Even if Congress can't on its own assign final adjudication of these
issues to the bankruptcy court, can the parties nonetheless agree that a judge
other than an article three judge—nominated by the president, confirmed by the
Senate—can exercise that core judicial authority of the United States?" That
is the issue that our case presents. Is this so fundamental a question of the
separation of powers that it would be akin to saying that some private agency
or association would purport to and enact legislation for Congress? No. You
can't do that and there are Supreme Court cases that say that. We would say the
same is true here. Even if it is expeditious for Congress to do that and the
parties agree, the constitution says that judges—nominated by the president,
confirmed by the Senate—have these qualities and if they don't then they can't
do that critical, essential act of the judiciary which is to enter judgment
into the United States.

When is
your brief due?

Our brief is due
on September 9.

What are
your thoughts on the "revolving door" between government and private
practice?

I think that it
is essential to the operation of government that people there understand how
the private sector works. And I think it's essential when you represent clients
in the private sector to understand how the government works. What are the
really critical aims that the government has in pursuing this investigation so
that you can respond accordingly and represent your client as best as possible?
I don't think that it's anything sinister at all. I think it’s a wonderful thing.
In D.C. perhaps more so than in other cities, those opportunities are really
very rich. You do see a little more of the turnover for that. We see that as
positive in our ability to represent our clients.

The last
Supreme Court term saw decisions involving the Voting Rights Act, affirmative
action and gay marriage. What are your thoughts on the cases themselves or the
term as a whole?

We were glad to
be involved in each of those three. One of the things that are most salient
about it is that in none of those three instances did the court go all the way
as one or the other side might have hoped. In the Voting Rights Act
decision, obviously great disappointment on one side that the coverage formula
was struck down, but you see in the Attorney General's most recent actions in
connection with Texas that he takes very seriously what the court said. All
they were striking down was the coverage formula. Where you can show that the
kind of supervision is appropriate, that remains a possibility.

Likewise in
affirmative action, reaffirming that we take this very seriously that you have
to have a very strong reason to use race, but equally taking seriously the
longstanding commitment to a diverse educational environment. We were certainly
very happy to see that reaffirmed for the clients that we represented which
were a number of selective research universities.

In gay marriage, I think the court took a very important step to
recognize that there was no basis for the federal government to refuse to
recognize the validity of marriages performed under state law, but at the same
time not going as far—at least yet—to decide whether that is something binding on
all states or whether it's an issue on which states can have differing views. It will be interesting in each of those
areas to see where it will go next. It's been rewarding to be part of those
cases for our clients.

What keeps
you busy outside the practice of law?

I am on the
governance counsel of our church so I help with that. Other than that it's
family and spending time with our kids. I am the coach of my youngest son's
little league baseball team. I am involved as a uniformed adult leader for my
oldest son's Boy Scouts troop. They are fun and great opportunities to spend time
with my kids, but also a good opportunity to give back to the community.

This is part of a series of Q&A sessions Legal Times is conducting with D.C.-based law firm managing partners. Photo by The National Law Journal's Diego M. Radzinschi.